Appeal by plaintiff from Friday, Judge. Judgment filed 15 August 1977 in Superior Court, Buncombe County. Heard in the Court of Appeals 17 October 1978.
Parker, Judge. Judges Martin (Robert M.) and Martin (Harry C.) concur.
"When a verdict is set aside for error or errors in law, committed during the trial, and not as a matter of discretion, the party
thereby aggrieved may appeal, provided the error or errors are specifically designated." Akin v. Bank, 227 N.C. 453, 455, 42 S.E.2d 518, 519 (1947); accord, Wells v. Bissette, 266 N.C. 774, 147 S.E.2d 210 (1966); McNeill v. McDougald, 242 N.C. 255, 87 S.E.2d 502 (1955); Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102 (1919). Here, the supposed errors which induced the court's action in setting aside the verdict were specifically stated by the court as (1) error in failing to submit to the jury an issue as to whether plaintiff's claim was barred by laches and (2) error in failing to submit an issue as to whether defendants have acquired title by adverse possession under color of title. The order setting aside the verdict in plaintiff's favor is, therefore, appealable.
The question presented for our review on this appeal is whether the court was correct in its determination that there was error in failing to submit either of the two additional issues to the jury. We hold that under the pleadings and evidence in this case neither of the two additional issues was properly raised for jury determination, that the single issue answered by the jury was determinative of the rights of the parties, and that the court erred in setting aside the verdict. Accordingly, we reverse the court's order, reinstate the verdict, and remand the case for entry of judgment on the verdict rendered.
First, we hold that there was no error in failing to submit an issue as to laches. In so holding we find it unnecessary to decide whether the present action is in essence one in ejectment and thus so legal in its nature and origin as to make untenable the equitable defense of laches, see Poultry Co. v. Oil Co., 272 N.C. 16, 157 S.E.2d 693 (1967); Coppersmith v. Upton, 228 N.C. 545, 46 S.E.2d 565 (1948); or whether it is essentially an action to quiet title and thus sufficiently equitable in nature to make the defense here tenable. See 65 Am. Jur. 2d, Quieting Title, § 2, p. 142-43, § 57, p. 188-89. Additionally, we find it unnecessary to inquire how far the rule recognizing laches as a defense only against equitable and not against legal claims has been adhered to in the past, see McRorie v. Query, 32 N.C. App. 311, 232 S.E.2d 312 (1977), or how far such a rule should be enforced in the future. This is so because, even if the present action be recognized as one in equity and thus one in which laches could be an appropriate defense, the defendants, for reasons quite apart from the nature of this action as being either legal or equitable, have not shown
that the defense is available to them under the pleadings or evidence in this case.
Laches is an affirmative defense which must be pleaded, G.S. 1A-1, Rule 8(c), and the party pleading it bears the burden of proof. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Harris & Gurganus v. Williams, 37 N.C. App. 585, 246 S.E.2d 791 (1978). G.S. 1A-1, Rule 8(c) expressly provides that "[i]n pleading to a preceding pleading a party shall set forth affirmatively . . . laches . . . . Such pleading shall contain a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved." Here, defendants did not raise an issue of laches in their answer. Nothing in their pleadings gives notice of any transactions or occurrences intended to be proved which would present an issue as to whether plaintiff's claim should be barred by laches. Moreover, even had the defense of laches been properly pled, the evidence was insufficient to raise any issue concerning it. In this regard the evidence shows the following:
Prior to 1961 plaintiff and her husband, Curtis Young, lived and worked in Washington, D.C. Curtis's parents lived in Buncombe County. They expressed the desire that Curtis and plaintiff come back to Buncombe County to live and raise their children, and indicated they would give Curtis and plaintiff a portion of defendants' home tract if they would agree to come back, build a home on the property, and live and raise their children there. In 1961 plaintiff and Curtis moved back to Buncombe County, defendants executed and delivered the deed under which plaintiff now claims, and Curtis and his father began building a house on the property. A basement was constructed of block and covered by sub-flooring, and four rooms and a bath were started in the basement. At that time plaintiff and Curtis intended to stay and live on the property, but shortly after the 1961 deed was executed they separated for the first time and did not thereafter again live on the property. Between 1961 and 1968 plaintiff and Curtis alternatively separated and lived together, but not on the property in question, and during that period four children were born of their marriage, their respective birthdates being 25 March 1962, 8 December 1963, 15 September 1965, and 17 May
1967. In 1968 plaintiff and Curtis were divorced. Plaintiff testified that she kept the 1961 deed in a box among her valuable papers from 1963 until 1968 and that she did not record it until the time of her divorce in 1968, when she was advised by a lawyer to do so. Defendant George Dewey Young testified that "Curtis said Arida [plaintiff] had lost it." Following the initial separation between plaintiff and Curtis, the defendant, George Dewey Young, continued to work on the house, finishing the sub-flooring and building a second story, paying for or doing all of this work himself. In 1965, after the upstairs was completed, defendants moved into the house, where they continued to live until the time of the trial, paying ...